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12.13.10

Did the Dems Blow It on Health Care?

A judge shut down the crux of health-care reform on Monday, threatening its legal viability—but many Democrats saw this day coming long ago. Benjy Sarlin on the individual mandate's contentious origins.

A judge's ruling that provisions in the Democrats' landmark health-care law requiring individuals to purchase insurance
are unconstitutional is sparking debate over whether the party might have blown it in crafting the initial legislation.

While long identified as both the most politically and legally vulnerable part of reform, many legal scholars initially predicted relatively smooth sailing for the individual mandate in the courts based on previous rulings upholding Congress' right to broadly regulate interstate commerce. But many were uneasy with the provision even before
Judge Henry Hudson decided in a Virginia district court on Monday that the federal government had overstepped its constitutional bounds.

The mandate was viewed at the time of legislation as the most effective route to universal coverage, allowing the federal government to finally ban insurance companies from discriminating against patients with pre-existing medical conditions by broadening the pool to include a wider pool of healthy insurance holders. But Senator Ben Nelson (D-NE), one of the last Democrats to get on board with the law before it passed the Senate, sensed discontent in his home state over the law and
asked the Government Accountability Office to investigate whether there were possible alternatives to the individual mandate last month.

Nelson told The Daily Beast that Democrats should have looked closer at ways to bypass the mandate while crafting the legislation.

Obama himself originally shied away from endorsing a mandate during the 2008 campaign, in contrast with Hillary Clinton's health-care plan.

"What's being looked at and decided today by different courts differently was known at the time," he said. He added that it would be "pretty hard" to force insurance companies to cover people with pre-existing conditions if Hudson's decision ends up being upheld.

Republican Senator Olympia Snowe of Maine, who voted for a health-care bill that included a mandate in committee, said that her decision to reject the overall legislation was heavily influenced by its inclusion in the final package.

"I personally thought it was a mistake to require Americans to purchase health-care plans when we could not prove that we were creating affordable health-care plans in that legislation," she said in an interview. "We didn't have to go that route on mandating. It was too ambitious, too driven towards this goal of having the government overreach."

Some Democrats, such as Paul Starr, a former health-care adviser to Bill Clinton, argued last year that the party should ditch mandates to put the bill on firmer ground, perhaps by
adding an opt-out that let Americans elect to forgo insurance so long as they agree not to apply for subsidies to buy it if they get sick. President Obama himself originally
shied away from endorsing a mandate during the 2008 campaign, in contrast with Hillary Clinton's plan.

Senator Kent Conrad (D-ND) said that Democrats weighed the dangers of the mandate, but ultimately decided it was sound after consulting with legal experts.

Said Conrad: "Is it conceivable a court could conclude differently? An individual court might, but as you go through the whole process I suspect it will be upheld."

Several legal experts, however, have suggested to The Daily Beast that the
courts have become politicized to the point that it’s impossible to rule out the laws' unpopularity among Republicans potentially influencing individual judges. Ultimately, the Supreme Court is likely to decide the matter before the mandate takes effect in 2014.

"I personally think the suit ought to lose as a matter of settled law," Aziz Huq, a professor law at the University of Chicago said. "But I think two years ago if someone had said there will be a groundswell conservative movement that sweeps Democrats across the country out of office and will be accompanied by calls to rewrite the 14th Amendment and have state legislators appoint senators I would have said you're on crack."

Ironically, mandates were typically floated by Republicans as a conservative alternative to Democratic health-care proposals. Mitt Romney, who has said the health-care law is unconstitutional, implemented a state law with mandates in Massachusetts that Obama has cited as a model for his own approach. And, as Steve Benen at Washington Monthly noted on Monday, Utah Senator Orrin Hatch hailed Hudson's decision even after he previously sponsored a bill that
included a mandate.

Benjamin Sarlin is the Washington correspondent for The Daily Beast and edits the site's politics blog,
Beltway Beast. He previously covered New York City politics for The New York Sun and has worked for
talkingpointsmemo.com.